State v. Warner, 2015 MT 230 (Aug. 11, 2015) (McKinnon, J.) (5-0, aff’d)
Issue: Whether the district court should have granted Warner’s motion to withdraw his nolo contendere plea, having allowed the state to deviate from its sentencing recommendation after Warner breached the plea agreement by being arrested for a subsequent offense.
Short Answer: No.
Facts: After being warned to update his address in the sex offender registry, and failing to do so for nine days, Warner was arrested and charged for failure to give notice of a change of home residence as a registered sex offender, a felony.
Warner signed a written plea agreement stating that the parties would make sentencing recommendations but that they would not bind the court. If the court did not follow either party’s sentencing recommendation, Warner would be entitled to withdraw his plea. Warner agreed to plead nolo contender and the state agreed to recommend a three-year commitment to DOC, to dismiss the charges in another case and not to seek designation as a persistent felony offender. The final clause of the agreement stated it was contingent on the defendant not committing any additional crimes or being arrested for any additional crimes prior to sentencing.
On June 10, 2013, the district court accepted Warner’s plea. In August 2013, the state moved to continue the sentencing hearing as it was considering withdrawing from the plea agreement based on a referral involving Warner. On Sept. 6, 2013, the state filed notice of its withdrawal form the plea agreement in light of Warner having been arrested and charged with sexual intercourse without consent, custodial interference, and endangering the welfare of a child.
At the sentencing hearing Sept. 12, 2013, the state again notified the court of its intention to withdraw from the plea agreement. The court asked what the remedy was when the defendant breached the agreement, saying in its mind, the breach relieved the state of its obligation to make a particular sentencing recommendation, but did not vitiate Warner’s plea. The state responded that it recommended a five-year DOC commitment and would not seek a PFO designation. It also said it intended to re-file charges in a previously dismissed case.
Procedural Posture & Holding: Warner then moved to withdraw his plea, arguing the state’s withdrawal from the plea agreement resulted in there being no contract. The district court disagreed and denied the motion, sentencing Warner to five years at MSP. Warner appeals, and the Supreme Court affirms.
Reasoning: Warner argues that, following his breach, the state had to choose between specific performance or rescission. When the state breaches a plea agreement, the defendant may elect specific performance or rescission of the plea agreement. The choice of remedy is in the hands of the non-breaching party, as informed by due process and the interests of justice. Where the defendant breaches the plea agreement, there is no clear or mandatory rule.
The plea agreement was non-binding on the court. Warner was told prior to entry of his plea that he could receive the sentence ultimately imposed. Warner was told he could not withdraw his plea except as provided by law. The cause of the state’s changing its sentencing recommendation was Warner’s breach of the agreement. These facts do not establish good cause to allow Warner to withdraw his plea.